PRIVILEGED COMMUNICATIONS Robert Farb, UNC School of Government (January 2016) Contents I. References ......................................................................................................................... 1 II. Privilege against Self-Incrimination .................................................................................... 1 III. Law Enforcement Officer-Informant Privilege .................................................................... 1 IV. Spousal Privilege and Competency to Testify .................................................................... 1 V. Physician-Patient Privilege ................................................................................................. 5 VI. Attorney-Client Privilege ..................................................................................................... 7 VII. Clergy-Communicant Privilege ......................................................................................... 11 VIII. Psychologist-Patient Privilege .......................................................................................... 11 IX. Other Statutory Privileges ................................................................................................ 12 I. References. A comprehensive reference on this topic is KENNETH S. BROUN, BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE §§ 125-130, 135 (7th ed. 2011) and its current cumulative supplement. I gratefully acknowledge the use of selected excerpts from Paul M. Newby, Advanced Criminal Evidence: Privileges (North Carolina Judicial College, May 21, 2015), and NORTH CAROLINA PROSECUTORS’ TRIAL MANUAL, Privileged Communications 617-27 (5th ed. 2012). For a discussion of federal HIPAA and its relationship to privileges and the disclosure of confidential health information in North Carolina state courts, see Jill Moore, Disclosure of Confidential Health Information in Court Proceedings (UNC School of Government, December 2011). II. Privilege against Self-Incrimination. For a discussion of the self-incrimination privilege, see Fifth Amendment Privilege and Grant of Immunity in this Benchbook. III. Law Enforcement Officer-Informant Privilege. The law enforcement-informant privilege provides that under certain circumstances the State is not required to reveal a confidential informant’s identity. For a discussion of this issue, see ROBERT L. FARB, ARREST, SEARCH, AND INVESTIGATION IN NORTH CAROLINA, 481-82, 564-65 (4th ed. 2011), and 2015 Cumulative Supplement, 80. Note that under criminal discovery provisions, the State is not required to disclose the identity of a confidential informant unless the disclosure is otherwise required by law. See G.S. 15A-904(a1). The duty to disclose is discussed in the reference cited above. IV. Spousal Privilege and Competency to Testify. Because the spousal privilege and a spouse’s competency to testify may arise at the same trial, both are discussed here. While the statutes and appellate cases speak of spouses as husband and wife, a question arises whether a state is required to include legally married people of the same gender within the provisions concerning spouse privilege and competency to testify in light of recent federal constitutional case law. See Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584 (2015) (couples of same gender have a federal constitutional right to marry). A. Competency to Testify. 1. For Defendant. A defendant’s spouse is a competent and compellable witness for the defendant in a criminal proceeding, but the defendant’s failure to call the spouse as a witness may not be used against the Privileged Communications -- 1 defendant. G.S. 8-57(a); State v. Robinson, 74 N.C. App. 323, 324 (1985) (trial court's erroneous failure to give curative instruction after sustaining objection to the district attorney's comment during closing argument that the defendant's wife, whom the district attorney argued was “the one person who can corroborate the defendant's story,” did not testify, was not harmless and required new trial). 2. For State. As a general rule, the defendant’s spouse is competent but not compellable to testify for the State against the defendant in any criminal proceeding. Notwithstanding this general rule, the spouse is both competent and compellable in a prosecution of: • Bigamy or criminal cohabitation, to prove the fact of marriage and facts tending to show the absence of divorce or annulment; • Assaulting or communicating a threat to the other spouse; • Trespass in or upon the separate lands or residence of the other spouse when living separate and apart from each other by mutual consent or court order; • Abandonment of or failure to provide support for the other spouse or their child; or • A spouse for any other criminal offense against the minor child of either spouse, including any child of either spouse who is born out of wedlock or adopted or a foster child. G.S. 8-57(b). 3. Relation to Spousal Communication Privilege. Even if a spouse is competent to testify at a criminal proceeding, he or she cannot be compelled to disclose any confidential communication made by one spouse to the other spouse during their marriage. G.S. 8-57(c); see Section IV.B. below. 4. Trial Practice. If a party objects to the testimony of a spouse who is competent but not compellable, the trial court should advise the spouse that he or she cannot be compelled to testify and determine whether the spouse wants to testify against the other spouse. State v. Britt, 320 N.C. 705, 709 n.1 (1987). 5. Admissibility of Spouse’s Out-of-Court Statement. Out-of-court statements by a defendant’s spouse to a third party are admissible against the defendant. State v. Rush, 340 N.C. 174, 182 (1995) (State was permitted to offer, through a 911 dispatcher, out-of-state statements made by the defendant’s spouse to the dispatcher on the night of a murder; the defendant had conceded that the statements were not confidential communications). Of course, the statements cannot include confidential communications between spouses and must be relevant and offered for a non-hearsay purpose or under an exception to the hearsay rule that does not violate a defendant’s Confrontation Clause rights. For a discussion of the Confrontation Clause, see A Guide to Crawford and the Confrontation Clause in this Benchbook. 6. Effect of Divorce. If spouses are divorced when a spouse testifies, the non-defendant spouse is both competent and compellable to testify as any other witness, except the spousal communications privilege still applies to confidential communications made during their marriage. Privileged Communications -- 2 Although there is no direct North Carolina appellate court ruling on this issue, such a ruling is highly likely. See KENNETH S. BROUN, BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE § 135, at 509-10 (7th ed. 2011). 7. Invalid or Sham Marriage. An invalid marriage bars the application of G.S. 8-57. State v. Allred, 298 N.C. 465, 472-73 (1979) (the defendant and a witness did not contract a valid common law marriage when living together in Pennsylvania). Although there is no North Carolina ruling whether a sham marriage (e.g., marriage solely to establish residency status for spouse who is foreign citizen) bars the application of G.S. 8-57, such a ruling finds support in rulings in other jurisdictions. See, e.g., Lutwak v. United States, 344 U.S. 604, 615 (1953) (when there is a sham marriage, “the reason for the rule disqualifying a spouse from giving testimony disappears, and with it the rule”). B. Spousal Communications Privilege. Neither spouse may be compelled to disclose a confidential communication between the spouses during their marriage. G.S. 8-57(c). 1. Elements of Privilege. a. Confidential. The determination of whether a communication is confidential depends on whether it “was induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship.” State v. Freeman, 302 N.C. 591, 598 (1981); see also State v. McKinnish, 110 N.C. App. 241, 247 (1993) (while in jail awaiting trial, the defendant sent his wife two threatening letters attempting to get her to testify to certain facts supporting his alibi defense and offering her material reward for her testimony; the letters were not privileged because they (1) contained threats against his wife, and (2) showed that the defendant was unable to rely on affection, confidence, and loyalty engendered by his marital relationship; rather defendant offered material reward in attempt to persuade wife to testify in his favor). Because they are not made in confidence, communications made in the known presence of a third party are not covered by the privilege. State v. Kirby, 187 N.C. App. 367, 372-73 (2007) (the defendant yelled to his spouse in a voice loud enough so anyone in the house could have heard him, and he knew that a third person was present). However, if the third person is the spouses’ young child, the privilege may cover the communication. Hicks v. Hicks, 271 N.C. 204, 207 (1967) (privilege existed even though the couple’s eight-year-old daughter was present during the conversations, given her young age and because she was singing or playing during one of the conversations). Nor does the privilege apply when the communication is made without a reasonable expectation of privacy. For example, the privilege does not apply to communications in a law enforcement agency’s interview room, public visiting area of a correctional facility, or in the presence of a law enforcement officer.